Kahn: A judge questions both sides in SMOC v. Framingham

John Kahn/ Guest columnist

Friday

Jul 31, 2009 at 12:01 AMJul 31, 2009 at 10:51 PM

The lawsuit by SMOC against Framingham is not going away anytime soon. Questions by Judge Douglas Woodlock to attorneys for SMOC and the Framingham Planning Board and its members at the hearing on July 29 indicated that he has focused on issues key to whether the suit should go forward to a jury trial.

The lawsuit by SMOC against Framingham is not going away anytime soon. Questions by Judge Douglas Woodlock to attorneys for SMOC and the Framingham Planning Board and its members at the hearing on July 29 indicated that he has focused on issues key to whether the suit should go forward to a jury trial.

Judge Woodlock has been a federal judge since 1986, appointed from private practice by President Reagan. He had several years of private practice and teaching, four years as an Assistant U.S. Attorney and, of interest in this case, two years as chairman of the Zoning Board of Appeals in the Town of Hamilton. He has a reputation for being an insightful, conscientious judge.

Two significant claims in the case survived earlier this year against defendants' motions to dismiss. Judge Woodlock decided then that claims under the federal Fair Housing Act and for defamation under Massachusetts law were legally sufficient. The hearing on July 29 on defendants' motions for summary judgment will result in a ruling whether SMOC and the defendants have amassed, in the thousands of pages of depositions, interrogatories, documents and admissions of fact, enough credible evidence to present their case to a jury. The case now includes claims under the Fair Housing, Americans With Disabilities and the Federal; Rehabilitation Act and Massachusetts law of defamation.

Those in Courtroom 1 in the new Moakley Courthouse included 13 lawyers for the defendants, three for SMOC, several selectmen and Planning Board members and approximately 30 other spectators and legal assistants to the lawyers. This direct exposure of individual defendants to Judge Wodlock's analysis of the issues and to the areas of particular interest to him, unfiltered through attorneys' eyes, may alter their impressions of their prospects in the case.

Judge Woodlock remarked several times that his responsibility is not to decide questions on facts shown by the paper work to be in real dispute. Those decisions are for the jury. He is limited to deciding whether there is sufficient evidence upon which a jury could reasonably decide such disputes in SMOC's favor and whether, taken as a whole, such facts, if found by the jury, would warrant an outcome favorable to SMOC.

Judge Woodlock began the two-hour hearing in a somewhat unusual manner. Rather than calling upon SMOC's lead attorney, Heidi Nadel, to present arguments, he asked her to speak to two issues he had extracted from the material presented to him. The first is whether the any defendants could be found liable for violating the federal ant-discrimination laws for imposing unwarranted delays upon SMOC in the permitting process even though the permits had eventually been granted with conditions acceptable to SMOC. The defendants' contention has been that the delays were justified by the complexity of the issues, the need to allow full public participation at hearings and SMOC's own tardiness in supplying requested information and obtaining other approvals needed to proceed.

The second question asked for the amount and description of the money loss SMOC claims to have suffered because of the claimed unjustified delay, which Ms. Nadel put at approximately $1,300,000. The suit also asks the court, if the defendants are found by the jury to have broken the law in their dealings with SMOC, to order defendants to "obey the law" in future similar dealings with SMOC. One consequence of such an order would put the defendants at risk of contempt of court proceedings if future violations were to occur.

Turning to counsel for the Planning Board, the Judge focused on a series of statements by at least two members. He asked whether they might prove an intention to discriminate against SMOC by suggesting payments in lieu of taxes (PILOT), requiring unwarranted information, arbitrarily modifying its site plans and speculating on the adverse impact on SMOC of prospective delays through court appeals. These inferences were strongly disputed by counsel. He referred to the circumstances in which the statements were made and advanced possible legitimate reasons for them. There seemed to be no dispute whether the comments had been made, but rather whether they reasonably could show discriminatory intent or simply showed vigorous inquiry by the Planning Board in a wholly appropriate manner.

One issue seemed of particular concern to the judge, perhaps reflecting his personal experience as a member of the Hamilton Board of Appeals: How to separate responsibility for statements and conduct of defendants acting as individuals, which might result in their personal liability, from their acts as town officials which would impose liability only upon the Town.

The next episode in this saga will commence with the judge's ruling and decision on what elements of this case, if any, ought be presented to a jury, possibly later this year or later after final trial preparation - more time, distraction and money.

John M. Kahn, a retired attorney, is a former Framingham selectman and former town counsel.

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